Derrick D. Gilbert v. Secretary Florida Dept. Of Corrections , 447 F. App'x 60 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12161 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cv-01292-EAK-TGW
DERRICK D. GILBERT,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
llllllllllllllllllllllllllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 14, 2011)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Derrick Gilbert, a Florida prisoner serving a total 20-year sentence after
pleading nolo contendere to various offenses, appeals pro se the district court’s
denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Gilbert initially had raised five claims in his habeas petition. Subsequently, he
expanded his petition to include an additional claim, namely, that the state violated
his due process rights by breaching a plea agreement. Before the district court
ruled on his petition, however, Gilbert filed a motion to withdraw the plea-
agreement claim, indicating that he had not exhausted state remedies with respect
to that claim, but was in the process of doing so. The district court then issued an
order denying Gilbert’s § 2254 petition on all of his five initial claims. The court
did not address the plea-agreement claim in its order, but simply granted Gilbert’s
motion to withdraw. We granted a certificate of appealability (“COA”) on the
following issue: whether the district court erred by granting Gilbert’s motion to
withdraw the plea-agreement claim and denying his five remaining claims, rather
than dismissing his entire § 2254 petition pursuant to Rose v. Lundy, 455 U.S. 509,
102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).
In reviewing a district court’s denial of a § 2254 habeas petition, we review
questions of law de novo. Grossman v. McDonough, 466 F.3d 1325, 1335 (11th
Cir. 2006). The Supreme Court held in Rose that, when a prisoner raises both
exhausted and unexhausted claims in his federal habeas petition, a district court
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must dismiss the petition without prejudice, “leaving the prisoner with the choice
of returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims to the district court.” Rose, 455
U.S. at 510, 519-20, 102 S. Ct. at 1199, 1204; Snowden v. Singletary, 135 F.3d
732, 736 (11th Cir. 1998).
Judging from the context of Gilbert’s motion to withdraw, it is evident that
he did not intend to delete the plea-agreement claim from his petition and to
proceed only with the exhausted claims, as doing so almost certainly would have
barred the plea-agreement claim from federal habeas review. See 28 U.S.C.
§ 2244(b)(2) (imposing heavy restrictions on filing successive habeas petitions);
see also United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990) (“Federal
courts have long recognized that they have an obligation to look behind the label
of a motion filed by a pro se inmate and determine whether the motion is, in effect,
cognizable under a different remedial statutory framework.”).
Certainly, when a petitioner seeks habeas review on both exhausted and
unexhausted claims, a district court need not always dismiss the entire petition
without prejudice. For instance, “when it is obvious that the unexhausted claims
would be procedurally barred in state court,” a district court may “forego the
needless ‘judicial ping-pong’ and just treat those claims now barred by state law as
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no basis for federal habeas relief.” Snowden, 135 F.3d at 736. Moreover, a habeas
petition “may be denied on the merits, notwithstanding the failure of the applicant
to exhaust” state remedies. 28 U.S.C. § 2254(b)(2); Thompson v. Sec’y for Dep’t
of Corr., 517 F.3d 1279, 1283-84 (11th Cir. 2008).1
In this case, the district court took none of the above alternatives, but simply
granted Gilbert’s motion to withdraw the plea-agreement claim without an
explanation, making it very difficult, if not impossible, for Gilbert to seek future
federal habeas relief on that claim. See 28 U.S.C. § 2244(b)(2). We express no
judgment on the procedural or substantive viability of the claim, and dismissing
Gilbert’s entire habeas petition under Rose may not be necessary. See 28 U.S.C.
§ 2254(b)(2); Snowden, 135 F.3d at 736. However, it is the district court’s
responsibility to make the appropriate determinations in the first place. See
Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000) (“If there is an issue that
the district court did not decide in the first instance, it is not properly before this
Court.”). Accordingly, we vacate the district court’s grant of Gilbert’s motion to
withdraw and remand for further proceedings.
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A district court may also grant a “stay and abeyance” of a § 2254 petition to allow the
exhaustion of claims. Thompson v. Sec’y for Dep’t of Corr., 425 F.3d 1364, 1365-66 (11th Cir.
2005). However, this remedy is available only in “limited circumstances,” namely, “if (1) the
petitioner had good cause for failing to exhaust the claims in state court; (2) the unexhausted claims
are potentially meritorious; and (3) there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Id. (quotations omitted).
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VACATED and REMANDED.
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